Death Penalty Sentences Have Dropped Considerably in the 2000s

Compared to the 1990s, there has been a marked decline in death sentences in the U.S. since 2000. Every region of the country and every state that averaged one or more death sentences per year have seen a decline in the annual number of death sentences. The chart below compares the annual number of death sentences in each state in the 1990s with the 2000s. North Carolina, California, Florida, and Texas experienced the greatest declines in sentencing.  This issue and others are addressed in the Death Penalty Information Center’s Year End Report, released December 11, 2008.



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First US Military Execution Since 1961 Scheduled for December

UPDATE: The United States District Court for the District of Kansas entered a stay of execution in Private Ron Gray's case on November 26. The U.S. military had scheduled its first execution since 1961 for December 10. Two decades ago, Pvt. Ronald Gray was convicted and sentenced to death by a general court-martial panel at Fort Bragg for murder and rape committed in the Fayetteville area of North Carolina. Earlier, a North Carolina civilian court had convicted him of the same crimes, but that court sentenced him to a series of life terms, rather than death.

Two decades ago, Pvt. Ronald Gray was convicted and sentenced to death by a general court-martial panel at Fort Bragg for murder and rape committed in the Fayetteville area of North Carolina. Earlier, a North Carolina civilian court had convicted him of the same crimes, but that court sentenced him to a series of life terms, rather than death.

In July, President George W. Bush approved the Army’s request to execute Gray. He has been on the military’s death row at Fort Leavenworth, Kansas, since 1988, and is scheduled to be executed by lethal injection by soldiers at the Federal Correctional Complex in Terre Haute, Indiana, which has been the site of executions under the federal death penalty. While the Army has scheduled the execution, there are still important legal issues in the case that have not been fully reviewed.

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Changes in Federal Death Penalty Statistics

The number of federal death sentences has increased in the past seven years, while the number of state death sentences has declined. The size of the federal death row has tripled since 2000, while the number of people on state death rows has dropped. There has also been a marked increase in the number of people on the federal death row from states that do not have their own death penalty laws.

From 1994 to 2000, there were 17 federal death sentences. From 2001 to 2007, there were 36 federal death sentences, while the annual number of state death sentences declined about 60% during this time. There were 19 inmates on the federal death row in 2000; today there are 57 inmates. The latest person to receive a federal death sentence is Rejon Taylor. A federal jury in Tennessee voted to impose a death sentence on Oct. 21, 2008. The judge is required to follow the jury's verdict, but has not formally imposed the sentence. About 58% of the inmates on the federal death row are (like Taylor) members of minorities.

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NEW RESOURCES: Representation and Costs in Federal Death Penalty Cases

In June 2008, the Office of Defender Services of the Administrative Office of the U.S. Courts published a report analyzing the cost, quality and availability of defense representation in federal death penalty cases. The report determined that federal capital trials in which the death penalty was sought were substantially more expensive than non-death penalty federal trials; however, a death sentence was handed down in only one-quarter of the cases. In addition, defense expenditures in a federal death penalty case correlated strongly with whether a death sentence was ultimately handed down.

Congress increased the number of offences for which the death penalty could be sought from one to 50 in 1994, resulting in an immediate increase in the number of death-eligible federal defendants. While death-eligible defendants numbered 26 in 1993, that number increased to 63 in 1994 and to approximately 150 every year after that. Of the cases that went to trial seeking the death penalty, only 25% resulted in a death sentence (61 out of 233). Only 14% of the cases in which the Attorney General authorized seeking the death penalty actually resulted in a death sentence. Cases in which the Attorney General authorizes pursuit of the death penalty are significantly more expensive than non-death cases. The average cost of a trial in a federal death case is $620,932, about 8 times that of a federal murder case in which the death penalty is not sought.

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NEW VOICES: Former U.S. Attorney Cites Improper Pressure in Use of Federal Death Penalty

Former U.S. Attorney Paul Charlton expressed relief that the Justice Department is no longer seeking to execute a defendant in the case that was cause for his termination. Charlton told the Associated Press that he did not think the government had sufficient evidence to pursue the death penalty in the prosecution of Jose Rios Rico. Charlton's boss, former Attorney General Alberto Gonzalez, wanted him to pursue it anyway and testified to a Senate panel that he fired Charlton over his “poor judgment” in the case. The present administration has reached a plea deal with Rico that takes the death penalty off the table. "A more seasoned group of individuals are reviewing these decisions now," Charlton said of the Department of Justice. Charlton also noted that the Justice Department resisted spending money to exhume a body in the Rico matter despite the fact that this would likely have helped the prosecution's case.

Charlton was one of the nine U.S. attorneys who were fired in 2006 in a controversial move by the Bush administration. Congressional investigations, an internal Justice Department inquiry, and calls on Capitol Hill for the resignation of Gonzales followed. Regarding Gonzalez, Charlton said, “Attorney General Gonzales and his deputy attorney general were primarily concerned with the dogma and political concerns that surround the death penalty as opposed to what was right.”

(C. Kahn, “Former US Attorney relieved with Ariz. Murder case,” Associated Press, September 23, 2008). See Federal Death Penalty and Arbitrariness.

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Death Penalty Poses Problems for Military Commission Trials

After the Pentagon announced earlier this year that it would seek the death penalty for six Guantánamo Bay detainees, little progress has been made in the case. According to The American Lawyer, the military commissions have had difficulties in finding qualified and willing defense attorneys to represent the six men who are accused of planning the September 11 attacks. Tom Fleener, a former military lawyer, said, “I don't believe any [of the 15 attorneys in the office of the chief defense counsel] would meet the standards of the American Bar Association for being lead counsel in a death case."

While civilian lawyers may volunteer to assist the defense, many find the process constrained and costly. The government does not provide financial compensation to volunteer lawyers, even for costs incurred while seeking evidence abroad. Likewise, civilian counsel is not permitted to meet with their clients without video surveillance, and they must obtain security clearance before doing so. The government also has significant liberties in terms of gathering evidence. It may present hearsay evidence as well as evidence obtained by torture as long as the evidence is later obtained in a less coercive manner. The government is not required to turn over exculpatory information.

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NEW RESOURCES: “Confronting Evil: Victims’ Rights in an Age of Terror”

In “Confronting Evil: Victims’ Rights in an Age of Terror,” Prof. Wayne Logan of Florida State College of Law examines the use of victim impact evidence in mass-victim prosecutions, such as the 1995 Oklahoma City bombing and the terrorist attacks of September 11. The article will appear in the forthcoming issue of the Georgetown Law Journal.  Victim impact evidence (VIE) is “information on decedents’ personal traits and the ways in which their deaths have adversely affected those left behind,” and it has been permitted in capital cases since the Supreme Court decision of Payne v. Tennessee (1991). Logan’s article reviews the history of the use of VIE in the U.S. and abroad and questions its particular role in prosecutions with many victims.

Prof. Logan concludes that the problems of VIE, including its emotional impact on trials, should lead to caution by the international community in incorporating such statements: "[T]he international community would be well advised to exercise restraint if it wishes to secure and maintain the perceived legitimacy of its trial and punishment of those involved in the mass killing of innocents."

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NEW VOICES: U.S. Attorney General Opposes Death Sentences in Military Commission Trials

U.S. Attorney General Michael Mukasey said that he hopes that the Guantanamo prisoners accused of terrorism do not receive the death penalty in the upcoming Military Commission trials because it would give them the martyrdom that they want.  In a recent talk to British economic students, Mukasey said he supports the death penalty, but, "In a way I kind of hope from a personal standpoint ... I kind of hope they don't get it. Because many of them want to be martyrs ....”

Prosecuting attorneys for the military have asked to seek the death penalty for 6 prisoners in Guantanamo accused of terrorism. The Department of Defense has not yet announced whether they will approve the military commission trials as capital cases.

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New Yorkers Showing Resistance to Federal Death Penalty

Since the federal death penalty was reinstated in 1988, the state of New York has been more reluctant to impose death sentences than other states, according to the Federal Death Penalty Resource Counsel Project. New York federal prosecutors have asked juries to impose death sentences 19 times, but in only one of those cases did they vote for the death penalty. Nationally, federal prosecutors win death penalties in about 33% of cases. In some cases, federal judges in New York have asked the Justice Department to reconsider its authorization of the death penalty.  Judge Jack B. Weinstein recently stated that a particular death penalty case before him was a waste of taxpayer money because of the unlikelihood of a death sentence.

In federal cases, the decision to seek the death penalty is first reviewed by a committee at the Department of Justice and then must be approved by the Attorney General. During John Ashcroft’s tenure as Attorney General, the United States attorney’s offices in Brooklyn and Manhattan were ordered to pursue the federal death penalty in 10 cases where the local prosecutors had not recommended doing so.

Brooklyn Judge Nicholas G. Garaufis has also asked the Justice Department to reconsider seeking the death penalty in some cases he has overseen. He noted, “There are judges — and I’m not speaking for them — who clearly look upon the death penalty as so unlikely to be ordered by a jury that it’s not worthwhile to pursue it. Especially because the alternative is life in prison without the possibility of release.”

Three people have been executed under federal law since that death penalty law was reinstated in 1988.
(“Aversion to Death Penalty, but No Lack of Cases,” by Alan Feuer, The New York Times, March 10, 2008). See Federal Death Penalty.

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NEW VOICES: Federal Judge Says Seeking Death Sentence not Worth the Costs

Federal District Court Judge Jack B. Weinstein said recently that seeking the death penalty against Humberto Pepin Taveras in New York is not worth the effort of prosecutors or taxpayers’ money. "Based on the history of cases tried in metropolitan New York, the chance of Pepin receiving the death penalty is virtually nil," Weinstein said.  The case against Taveras, who confessed to murdering two drug traffickers in the 1990s while already serving more than 12 years in prison for other crimes, has already cost over $750,000 in defense costs, and Judge Weinstein expects that number to increase. There has only been one death sentence recommended by a federal jury in New York since the federal death penalty was reenacted in 1988 (Ronell Wilson in 2007).

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